Dowling v Dr Hamish Meldrum
[2021] NSWPICMP 121
•13 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dowling v Dr Hamish Meldrum [2021] NSWPICMP 121 |
| APPELLANT: | Therese Dowling |
| RESPONDENT: | Dr Hamish Meldrum |
| APPEAL PANEL: | Member Marshal Douglas Dr Brian Noll Dr Margaret Gibson |
| DATE OF DECISION: | 13 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant suffered injury to her lower back on 30 July 2001 that also affects her right and left legs at or above the knees; assessment under the Table of Disabilities; appellant submitted Medical Assessor made no reference to a 2018 CT scan and did not explain why his assessment of her impairment of her back and loss of the legs at or above the knees was different from assessments made by other IMEs and that, consequently, the MAC contained a demonstrable error; Held- Appeal Panel found that Medical Assessor had regard to the 2018 CT scan but it was not relevant to the assessment of the appellant’s impairment and losses, which was done by reference to the symptoms she reported and the Medical Assessor’s findings from examination; nor was the 2018 CT scan relevant to the deduction to be made for an earlier injury; whereas earlier radiological investigations done in 2004 were relevant and the Medical Assessor explained in the MAC how so; Medical Assessor not required to explain why his assessments differ from other IME’s assessment, but is required to explain the path of his reasoning for his assessment, which he did; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 May 2021 Therese Dowling (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The appeal relates to an impairment dispute, as that term is defined in Clause 4(4) of Part 18C of Schedule 6 of the Workers Compensation Act 1987 (1987 Act). That dispute that was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 April 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
This matter was assessed under the table of disabilities.
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2000 with Dr Hamish Meldrum (the respondent). She performed reception duties. Prior to commencing her employment, she had suffered an injury to her lower back in 1990 whilst working as a shearer.
On 30 July 2001, she again injured her back due to her employment with the respondent. This occurred as a consequence of her pushing a box whilst bending down that was heavier than she expected. She felt grabbing pain in her back at the time. Over the years her pain got worse and radiated into both of her legs. The treatment she has received for her injury has involved her taking medications and using heat packs.
On 6 July 2007 the respondent paid her compensation under s 66 of the 1987 Act in the amount of $15,525.
The appellant’s solicitors arranged for occupational physician Dr Tim Anderson to examine the appellant, which he did on 25 June 2018. He then reported to the appellant’s solicitors that he had assessed the appellant had 25% permanent impairment of her back, 10% loss of use of her left leg at or above the knee and 20% loss of use of her right leg at or above the knee as a consequence of the injury she suffered on 30 July 2001.
The appellant’s solicitors on 6 September 2018 wrote to the respondent’s insurer, who was then QBE, notifying it that the appellant was claiming compensation under s 66 of the 1987 Act of $15,000 for 25% permanent impairment of the back, $7,500 for 10% loss of use of her left leg at or above the knee and $15,000 for 20% loss of use of her right leg at or above the knee. The appellant’s solicitors provided the insurer with a copy of Dr Anderson’s report of 25 June 2018.
Subsequent to that, the appellant was examined by orthopaedic surgeon Dr Vija Panjratan on 4 June 2019 at the request of the respondent’s solicitors. On 14 June 2019 Dr Panjratan wrote to those respondent’s solicitors advising them that he had assessed the appellant had 15% impairment of her back and 7.5% loss of her left leg and 5% loss of her right leg.
It would seem that subsequent to the appellant’s solicitors writing to the respondent’s insurer on 6 September 2018, the insurer changed from QBE to GIO. On 3 July 2019, the appellant’s solicitors wrote to GIO notifying it of the claim the appellant was making against the respondent for compensation under s 66. The appellant’s solicitors provided GIO with a copy of Dr Anderson’s report.
The claim was not accepted and on 28 August 2020 the appellant lodged with the Commission an Application to Resolve a Dispute seeking determination of her claim for compensation. The matter was referred to arbitrator Ms Jane Peacock, who with the consent of the parties on 1 October 2020 remitted the matter to the Registrar so it could be referred to an Approved Medical Specialist to assess “the degree of permanent impairment’ from the appellant’s injury. The Appeal Panel notes that since the abolition of the Workers Compensation Commission on 28 February 2021 and the creation of the Personal Injury Commission on 1 March 2021, an Approved Medical Specialist is now known as a Medical Assessor.
The purpose of referring the matter to the Medical Assessor was to enable the Medical Assessor to assess an impairment dispute. The Appeal Panel observes that, in accordance with clause 3 of Part 18C of the 1987 Act, s 66, s 68A and s 73, in the form in which those provisions were enacted immediately before 1 January 2002, applied for the purpose of assessing the appellant’s losses from her injury, and her consequent entitlement to compensation from those losses.
On 3 December 2020 the Commission duly referred the matter to the Medical Assessor. As mentioned, on 20 April 2021, the Medical Assessor issued the MAC in response to that referral. In the MAC the Medical Assessor certified that he had assessed the appellant to have 10% permanent impairment of her “lumbar spine”, 5% permanent loss of use of her left leg at or above the knee and 5% permanent loss of use of her right leg at or above the knee. The Medical Assessor considered that a proportion of the appellant’s impairment of her back and loss of use of her legs at or above the knees was due to a pre-existing condition, specifically degenerative disc disease of the lumbar spine. The Medical Assessor made a deduction of one-tenth for that, such that he assessed that the appellant had 9% permanent impairment of her “lumbar spine”, 5% permanent loss of her left leg at or above the knee and 5% permanent loss of her right leg at or above the knee as a result of her injury on 30 July 2001.
The Medical Assessor’s reference to “lumbar spine” in the MAC was clearly meant to be a reference to “back”.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the appellant on 5 March 2021. In terms of the symptoms the appellant suffers, the Medical Assessor recorded that the appellant’s pain is at times so bad she needed to walk with a walking stick. The Medical Assessor noted that the appellant had mid-lumbar spine pain that radiates to her coccyx and also into her buttocks and occasionally into her groin and interior thighs. The Medical Assessor noted that the appellant rarely gets pain in her calf. The Medical Assessor noted that the appellant’s walking is restricted and limited to three blocks. The Medical Assessor noted that if the appellant walks a greater distance she gets pain and needs to rest.
The Medical Assessor noted that the appellant is unable to mow her lawn or walk for recreation or move furniture around her house. The Medical Assessor noted that the appellant has difficulty sweeping, mopping and vacuuming.
The Medical Assessor recorded the following findings from his physical examination of the appellant:
“On examination she was a well looking woman in no obvious distress. Trendelenburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. Peripheral power was intact. Straight leg raise was to 80° bilaterally without tension signs. Hip range of motion and Faber’s test were non-irritable. Peripheral pulses were present.”
The Medical Assessor noted that he was able to review an MRI of the appellant’s lumbar spine that was dated 25 May 2004 which he noted demonstrated degenerative protrusion of the L4/5, L5/S1 disc. The Medical Assessor also noted that a CT scan of the appellant’s lumbar spine done on 16 March 2004 demonstrated calcification of the posterior annulus consistent with chronic disease.
The Medical Assessor provided a diagnosis that as a consequence of the injury the appellant suffered at her work on 30 July 2001 the appellant had suffered an aggravation of underlying degenerative disc disease as seen on the imaging.
As mentioned, the Medical Assessor assessed the appellant had 10% impairment of her back, 5% loss of her left leg at or above the knee and 5% loss of her right leg at or above the knee but considered that a proportion of that was due to pre-existing degenerative disease of her lumbar spine. The Medical Assessor indicated that it was too difficult or costly to determine the extent to which that pre-existing disease contributed to the appellant’s impairment and losses, and hence he assumed the contribution was one-tenth, which he said was in accordance with s 323(2). The Appeal Panel notes that the Medical Assessor’s assumption in this regard was done in accordance with s 68A(6) of the 1987 Act, as saved.
As also mentioned, the Medical Assessor consequently assessed the appellant had 9% permanent impairment of her back, 5% permanent loss of her left leg at or above the knee and 5% permanent loss of her right leg at or above the knee as a consequence of the injury the appellant suffered on 30 July 2001. The Medical Assessor noted that his assessment differed slightly from the assessment Dr Panjratan had made. The Medical Assessor also referred to the report of Dr Anderson of 25 June 2018 and said “I agree that there is no evidence of radiculopathy on examination”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor did not make reference to a CT scan on which Dr Sonja Borsky had reported on 21 February 2018 and that the Medical Assessor had failed to consider that CT scan. The appellant submits that this CT scan provided evidence of further significant deterioration of her lumbar spine from when the 2004 investigations were done and revealed adverse features that were not present in those earlier investigations.
The appellant submits that the Medical Assessor provided no reasons for why his assessments were lower than the assessments of Dr Panjratan.
The appellant submits that the Medical Assessor erred by saying that Dr Anderson had found that she did not have radiculopathy, whereas Dr Anderson expressly made a diagnosis of radiculopathy. The appellant submits that because the Medical Assessor incorrectly said that Dr Anderson did not find radiculopathy it is unlikely that the Medical Assessor had reviewed Dr Anderson’s report.
In reply, the respondent submits that the appellant did not address in her submissions how the Medical Assessor made his assessment based upon incorrect criteria. The respondent submits that the Medical Assessor applied the correct criteria because he assessed the appellant’s impairment under the table of disabilities.
The respondent submits that the Medical Assessor used his clinical skill and judgment in making the assessment and his assessment was based on the evidence, including his interview of the appellant and his examination of the appellant on the day of the assessment. The respondent submits that the Medical Assessor reviewed the relevant radiology comprising the MRI of the appellant’s lumbar spine dated 25 May 2004 and the CT scan of the lumbar spine dated 16 March 2004. The respondent submits there is nothing to support the appellant’s submission that the Medical Assessor did not consider Dr Anderson’s report. The respondent submits that the mere fact that the Medical Assessor reached a different assessment to that reached by Dr Anderson does not demonstrate an error.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
A Medical Assessor does not have to refer to every item of evidence to explain his or her assessment of a worker. However, a Medical Assessor needs to consider all the evidence and it is an error for a Medical Assessor not to consider all relevant and significant material.[2]
[2] See Tattersall v Registrar of the Workers Compensation Commission of NSW & anor [2017] NSWSC 453 at [14] and Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152 [70]-[76]
The assessment of an impairment dispute is done in accordance with the table to s 73 of the 1987 Act, in the form was enacted prior to the commencement of the lump sum compensation amendments. In this case, that required the Medical Assessor to conduct an evaluation of the extent to which the appellant had lost the use of her legs at or above the knees and had impaired function of her back, consequent upon her injury. Critical to that task was the extent to which the appellant’s symptoms affected her back, that is how the appellant’s symptoms impaired her function and how her symptoms affected the use she had of her legs at or above her knees.
The evaluation of those matters depended upon the symptoms the appellant reported and the findings the Medical Assessor made from his examination of the appellant. The radiological investigations that had been done were not, of themselves, directly relevant to that, in that whatever they showed would not have affected the findings the Medical Assessor made from his examination or the appellant’s report of her symptoms. Saying that another way, it was the appellant’s symptoms and signs by which the impairment of her back and loss of the use of her legs above the knees were rated, and whilst, the radiological investigations provided evidence to reveal the pathology from which her symptoms and signs arise, and assist in the diagnosis of injury, they did not demonstrate the appellant’s symptoms and signs which could only be revealed by the appellant’s report or through the Medical Assessor’s clinical examination of the appellant.
The radiological investigations that were done in 2004 were however relevant to the issue of whether the appellant had a pre-existing condition that contributed to the impairment she had of her back and the loss of use of her right and left legs above the knees. This is because they were first investigations done after the appellant suffering injury and were relatively close in time to her suffering her injury. In other words, those investigations were significant and relevant in the sense that they provided evidence as to whether the appellant was likely to have had a pre-existing condition in her lumbar spine at the time she suffered her injury that contributed to her current impairment and losses.
Indeed, the Medical Assessor found those investigations did establish that and he considered that the degeneration which those investigations revealed in the appellant’s lumbar spine contributed to the impairment the appellant had of her back and the loss of use of her left and right legs at or above the knees consequent upon her injury. He accordingly made a deduction under s 68A, which he assumed in accordance with s 68A(6) to be 10%.
The Appeal Panel considers that the Medical Assessor was right with respect to this finding and the deduction he made.
The Appeal Panel considers that the Medical Assessor did have regard to the CT scan done in 2018. This is because Dr Borsky’s report on the CT scan was in the materials that were forwarded to the Medical Assessor. Further, both Dr Anderson and Dr Panjratan made reference to that CT scan in their respective reports, and in the Appeal Panel’s view, the Medical Assessor had obviously read these reports because he referred to these reports in the MAC. He was aware therefore that this CT scan had been done. Even if it be the case that he did not actually read the particular report of Dr Borsky on the CT scan, which the Appeal Panel does not find but raises this scenario in arguendo, the Medical Assessor was aware of the substance of it by virtue of what Drs Anderson and Panjratan had summarised regarding it in their respective reports.
The CT scan done in 2018 revealed further degeneration in the appellant’s lumbar spine from that which was revealed in the radiology done in 2004. However, that further degeneration revealed in the 2019 CT scan did not in the Appeal Panel’s view warrant any further deduction for the proportion to which the appellant’s pre-existing condition contributes to her present impairment of her back and loss of use of her right and left legs at or above the knees than that which, in accordance with s 68A(6), the Medical Assessor presumed it to be. The 2018 CT scan did not change the situation regarding the difficulty or the cost involved in working out the extent to which the pre-existing degeneration in the appellant’s lumbar spine contributed to her impairment and losses. The best evidence with respect to that was the 2004 investigations.
Simply put, the Appeal Panel considers that the Medical Assessor was aware of the 2018 CT scan but there was no need for the Medical Assessor to refer to that CT scan because it had no bearing on the deduction that was to be made under s 68A(1) of the 1987 Act. The Appeal Panel considers that, in all likelihood, that is why the Medical Assessor did not refer to it.
In the Appeal Panel’s view, the Medical Assessor’s reference to Dr Anderson finding that there was no evidence of radiculopathy is of no relevance. This again is because the assessment of the appellant’s impairment of her back and loss of use of her right and left legs at or above the knees is done by reference to how the appellant’s injury has affected her function of her back and her right and left legs. That is done by reference to the appellant’s reported symptoms and the Medical Assessor’s findings from examination. The Medical Assessor was aware that the appellant had pain radiating down into her limbs, which however did not reach her calves. The Medical Assessor was aware that the appellant’s pain affected the distance that she could walk and the household and recreational activities she could undertake. Regarding whether or not a finding of radiculopathy was available based on the findings and radiological evidence, would not affect the assessment, that was done pursuant to s 73, of the appellant’s impairment of her back or loss of use of her right or left legs at or above the knees.
In the Appeal Panel’s view the assessment the Medical Assessor made of the appellant’s impairment of her back and the loss of use of her right and left legs at or above the knees was open to him based on the findings he had made and the symptoms the appellant reported to him. It does not matter that Dr Panjratan and Dr Anderson considered she had greater impairment of her back and loss of use of her left and right legs at or above the knees, nor does it matter if the Appeal Panel or any other clinician might hold a different view on that, because a difference of opinion does not demonstrate an error in the assessment the Medical Assessor made, provided the assessment was available on the evidence.
Insofar as the appellant has submitted that the Medical Assessor erred by not explaining why his assessments differed from assessments made by Dr Anderson or Dr Panjratan, the Appeal Panel notes that the Medical Assessor was required to form his own opinion regarding the evaluation of the appellant’s impairment of her back and loss of use of her left and right legs at or above the knees and to expose within the MAC the path of his reasoning for his assessment. He was not required to provide reasons as to why his opinion or assessments differed from other doctors who had examined and assessed the appellant.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 April 2021 should be confirmed.
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